DOCTRINE SEPARATION

OF POWER
ADMINISTRATIVE LAW
 Origin and development
• 3 exponents of Theory of Separation of Power

Philosopher /Jurist

Locke Montesquieu
Aristotle
Developed and [Propounded]
[Originated]
Defined its Principles

How will S.O.P

exist

Systematic and
Its Functions Scientific
formulation.
 Meaning
• The doctrine of separation of powers means that none of the government, i.e., the

legislative, executive and judicial should ever exercise the powers of the other. It
means that the three departments of government are to be separated and
distinct. They are to be independent of one another, and each can exercise only
one type of authority, legislative, executive or judicial.
Montesquieu
Book: Spirit of law
Formulated theory

Distinguish
the Govt.

Legislature Executive Judiciary

 IMPORTANCE OF THE THEORY OF
SEPARATION OF POWERS
• It aims at individual liberty. It is a safeguard against despotism.

• Its basic principle that concentration of powers leads to dictatorship is

true for all time and ages.

• The separation of powers saves the people from the arbitrary rule of the

executive .

• This theory lays down the principle that governments should act

according to certain well established rules or law.

• Each organ acts as a check upon the others.

• It is desirable for maintaining the efficiency in the administration.

 Constitutional Provisions

 Article 50: It puts an obligation over the state to separate the judiciary from the

executive. However, Article 50 falls under the Directive Principles of State policy
(DPSP) and hence not enforceable.

 Articles 121 and 211 : The legislatures cannot discuss the conduct of a judge of

the High Court or Supreme Court. They can do so only in matters of

impeachment.

 Articles 122 and 212 :The courts cannot inquire the validity of the proceedings of

the legislatures.

 Article 361 :The President and Governors enjoy immunity from the Proceedings
 Check and Balances
• The first major judgment by the judiciary in relation to Doctrine of separation of

power was in Ram Jawaya v state of Punjab. The court in the above case was of
the opinion that the doctrine of separation of power was not fully accepted in
India.

• Indira Nehru Gandhi v. Raj Narain also observed that in the Indian Constitution

there is separation of powers in broad sense only. It observed that basic structure
also embodies the separation of powers doctrine and none of the pillars of the
Indian Republic can take over the other functions, even under Article 368. it was
held that this doctrine is useful as a means of checks and balances in a political
setup. For examples the judiciary should shy away from the politics of the
Parliament and the latter should revere the opinion of the Courts.
• The judgment makes the concept of Check and Balances clear that if any organ exceeds its

authority the other organ can interfere in the same by:

1. Judiciary exercises judicial review over legislative and executive actions.

2. Legislatures review the functioning of the executive also it removes the judges.
It can also alter the basis of the judgment while adhering to the constitutional
limitation.

3.Executive appoints the judges.

A system of checks and balances is a practical necessity in order to achieve the

desired ends of the doctrine of separation of powers. Such a system is not
dilatory to the doctrine but necessary in order to strengthen its actual usage.
 Conclusion
• The doctrine of separation of powers in the strict sense is

undesirable and unpractical and therefore till now it has not

been fully accepted in any of the country, but this does not mean
that the doctrine has no relevance in the world of today. The
logic behind this doctrine is still valid. The logic behind the
doctrine is of polarity rather than strict classification, meaning
thereby that the centre of authority must be dispersed to avoid
absolutism. Hence the doctrine can be better appreciated as a
doctrine of ‘check and balance’.